VIRGINIA:
In the Supreme Court of Virginia held at the Supreme Court Building in the City of Richmond on Friday, the 27th day of February, 2009.
Demetres Jerrod Rudolph, Appellant,
against Record No. 080794 Court of Appeals No. 0240-07-1
Commonwealth of Virginia, Appellee.
Upon an appeal from a judgment rendered by the Court of Appeals of Virginia.
Upon consideration of the record, briefs, and argument of
counsel, the Court is of opinion that there is reversible error in
the judgment of the Court of Appeals.
Demetres J. Rudolph was charged with and found guilty of
possession of marijuana with the intent to distribute in the
Circuit Court of the City of Virginia Beach. By an unpublished
memorandum opinion, the Court of Appeals affirmed Rudolph’s
conviction. Rudolph claims that he was stopped in violation of his
rights under the Fourth Amendment of the United States Constitution
and that all evidence obtained as a result of that stop should have
been suppressed. The Commonwealth contends that, under the
circumstances, the police officer’s investigatory stop was
constitutionally permissible.
On January 23, 2006, at approximately 8 p.m., Officer Jeremy P.
Latchman was patrolling the Cypress Point Plaza Shopping Center area. Multiple burglaries of closed businesses and robberies of
individuals had occurred in that area. Latchman saw a "vehicle with
no lights on parked parallel in the rear of [a] Citgo Gas Station,"
located on an outparcel of the shopping center. The gas station was
open for business, and there was an entry door for customers in the
"rear," which is the side of the building that is opposite the side
of the building where the gas pumps are located. Latchman thought
the circumstance of the vehicle being parked in that location was
unusual because he did not believe that customers used the station’s
rear entry in the nighttime. In addition, while there are parking
spaces on that side of the building, the vehicle was not parked in a
marked parking space.
There were two people in the parked vehicle. Rudolph was in
the driver’s seat. In the few seconds he observed the parked
vehicle from about a car length and a half away from Rudolph’s
vehicle, Latchman saw Rudolph moving around in the vehicle and saw
Rudolph’s head "[go] down a couple of times and back up." Latchman
testified that Rudolph appeared to be looking or reaching for
something inside the vehicle. Latchman decided to drive his marked
police vehicle around the gas station to "make sure everything was
fine." In doing so, he did not observe anything unusual. While
Latchman was circling around the gas station, Rudolph began to drive
away.
Latchman stopped Rudolph’s vehicle. During the stop, Rudolph
was asked to exit the vehicle; marijuana was found at the center
floor divider where Rudolph’s right leg had been. The discovery of
2 that marijuana led to the conviction that is the subject of this
appeal.
A defendant’s claim that evidence was seized in violation of
the Fourth Amendment presents a mixed question of law and fact that
we review de novo on appeal. Bolden v. Commonwealth, 263 Va. 465,
470, 561 S.E.2d 701, 704 (2002). In making such a determination,
we give deference to the factual findings of the circuit court, but
we independently determine whether the manner in which the evidence
was obtained meets the requirements of the Fourth Amendment.
McCain v. Commonwealth, 275 Va. 546, 552, 659 S.E.2d 512, 515
(2008).
In order to conduct an investigatory stop, a police officer
need not have probable cause; he must have a reasonable suspicion,
based on objective facts, that the person is involved in criminal
activity. Ewell v. Commonwealth, 254 Va. 214, 217, 491 S.E.2d 721,
722 (1997). To establish reasonable suspicion, an officer must be
able to articulate more than an unparticularized suspicion or
"hunch" that criminal activity is afoot. Illinois v. Wardlow, 528
U.S. 119, 123-24 (2000). A court must consider the totality of the
circumstances when determining whether a police officer had a
particularized and objective suspicion that the person stopped was
involved in criminal activity. Ewell, 254 Va. at 217, 491 S.E.2d
at 722-23. The fact that the stop occurred in a "high crime area"
3 is a relevant factor; however, this fact is insufficient to supply
a particularized and objective basis for suspecting criminal
activity on the part of the particular person stopped. Wardlow,
528 U.S. at 124; McCain, 275 Va. at 552-53, 659 S.E.2d at 516.
We hold that the circumstances and actions observed by
Latchman were not enough to create a reasonable articulable
suspicion that criminal activity was afoot. Viewing the totality
of the circumstances objectively, even though it was 8:00 p.m. and
there had been robberies and burglaries in the area, the
circumstances did not supply a particularized and objective basis
to suspect that Rudolph’s observed behavior was a precursor to a
break-in, robbery, or any other criminal activity on his part.
Therefore, Latchman stopped Rudolph in violation of Rudolph’s
rights under the Fourth Amendment. Because the marijuana was
discovered as a result of an illegal stop, the trial court should
have granted Rudolph’s motion to suppress.
Rudolph entered a conditional guilty plea pursuant to Code
§ 19.2-254, which provides in part that "[i]f the defendant
prevails on appeal, he shall be allowed to withdraw his plea."
Rudolph has prevailed on appeal regarding suppression of the
evidence in this case. He is, therefore, entitled by statute to
withdraw his plea of guilty. Rudolph must be given the opportunity
to reassess the admissible evidence that may be used against him
4 and, if the Commonwealth wishes to continue its prosecution,
Rudolph may demand a trial if he so desires. See Code § 19.2-254;
Hasan v. Commonwealth, 276 Va. 674, 681, 667 S.E.2d 568, 572
Accordingly, the judgment of the Court of Appeals is reversed,
Rudolph’s conviction in the Circuit Court of the City of Virginia
Beach, case number CR06-1036, is vacated, and we will remand this
case to the Court of Appeals with direction that the Court of
Appeals remand the case to the circuit court for proceedings
consistent with the views expressed in this order if the
Commonwealth be so advised.
_______________
JUSTICE LEMONS, with whom JUSTICE KINSER and SENIOR JUSTICE CARRICO join, dissenting.
The jurisprudence of the United States Supreme Court dealing
with searches and seizures under the Fourth Amendment has always
sought to strike the correct balance between protecting the
constitutional rights of citizens and ensuring that law enforcement
officers can take necessary action to protect the public and ensure
compliance with the law.
I believe the majority today has misapplied the law relating to
investigatory stops under the Fourth Amendment, both in discounting
the cumulative effect of the circumstances encountered by the police
officer here, and in misconstruing the degree of suspicion required
5 to justify such stops under Terry v. Ohio in a way that imposes a
much heavier burden on police than the constitution warrants.
I. Principles of Law
Under the Fourth Amendment, brief stops by law enforcement
officers to investigate the possibility of criminal behavior may be
justified by a lower standard of suspicion than is required for "a
'technical arrest' or a 'full-blown search,'" in the words of Terry
v. Ohio, 392 U.S. 1, 19 (1968).
The Fourth Amendment prohibits "unreasonable searches and seizures" by the Government, and its protections extend to brief investigatory stops of persons or vehicles that fall short of traditional arrest. Because the "balance between the public interest and the individual’s right to personal security" tilts in favor of a standard less than probable cause in such cases, the Fourth Amendment is satisfied if the officer’s action is supported by reasonable suspicion to believe that criminal activity " 'may be afoot.' "
United States v. Arvizu, 534 U.S. 266, 273 (2002) (citations omitted). This doctrine, which was recognized as to pedestrians in
Terry, 392 U.S. at 30, has been extended to stops of vehicles whose
drivers are suspected of engaging in wrongdoing. United States v. Cortez, 449 U.S. 411, 417 (1981); see also Delaware v. Prouse, 440
U.S. 648, 663 (1979). We have also recognized and applied this
lower standard to vehicle stops. Jackson v. Commonwealth, 267 Va. 666, 673, 594 S.E.2d 595, 598 (2004).
While "reasonable suspicion" must be based on more than an
"inchoate and unparticularized suspicion or 'hunch,' " Terry, 392
U.S. at 27, the United States Supreme Court has also made clear that
the standard only requires "some minimal level of objective 6 justification" for making the stop in question, INS v. Delgado, 466
U.S. 210, 217 (1984) (citing United States v. Mendenhall, 446 U.S.
544, 554 (1980); Terry, 392 U.S. at 21). Indeed, the Court has
often reemphasized the significant difference between the low
threshold of "reasonable suspicion" on the one hand, and the
considerably more demanding requirements of "probable cause," "a
preponderance of the evidence," and "beyond a reasonable doubt" on
the other. For example, in United States v. Sokolow, 490 U.S. 1, 7
(1989), the Court noted that reasonable suspicion is "considerably
less than proof of wrongdoing by a preponderance of the evidence,"
and "obviously less demanding than that for probable cause." And in
Alabama v. White, 496 U.S. 325 (1990), the Court further explained that
reasonable suspicion is a less demanding standard than probable cause not only in the sense that reasonable suspicion can be established with information that is different in quantity or content than that required to establish probable cause, but also in the sense that reasonable suspicion can arise from information that is less reliable than that required to show probable cause.
Id. at 330.
Whether officers making an investigatory stop are presented
with circumstances sufficiently suspicious to satisfy this minimum
standard is determined by examining the totality of the
circumstances in the context of the officer’s experience and
training. United States v. Cortez, 449 U.S. 411, 417-18 (1981). As
the Supreme Court has noted, "[t]his process allows officers to draw
on their own experience and specialized training to make inferences
7 from and deductions about the cumulative information available to
them that 'might well elude an untrained person.' " Arvizu, 534
U.S. at 273 (quoting Cortez, 449 U.S. at 418).
And, as the Court has insisted since it first recognized the
constitutionality of reasonable investigative stops in Terry, "it is
imperative that the facts be judged against an objective standard,"
Terry, 392 U.S. at 21, meaning that the officer’s actual conclusion
in the particular case at issue is irrelevant. Instead, reviewing
courts must ask: "would the facts available to the officer at the
moment of the [stop] 'warrant a man of reasonable caution in the
belief' that the action taken was appropriate?" Id. at 21-22. This legal framework exists to guide trial courts in ruling on
challenges invoking the Fourth Amendment, and to guide appellate
courts in reviewing the constitutionality of those rulings. In our
constitutional order, some (but not all) violations of the Fourth
Amendment trigger an extreme remedy: the exclusionary rule, which,
if applicable, provides that the improperly obtained evidence is
inadmissible against the defendant. See, e.g., id. at 12-13.
The Supreme Court has recently reemphasized the severity of the
exclusionary rule and the resulting restraint courts must show when
invoking it. "[E]xclusion 'has always been our last resort, not our
first impulse.' " Herring v. United States, 555 U.S. ___, ___, 129 S.Ct. 695, 700 (2009) (quoting Hudson v. Michigan, 547 U.S. 586, 591
(2006)). " '[T]he rule’s costly toll upon truth-seeking and law
enforcement objectives presents a high obstacle for those urging
[its] application.' " Id. at ___, 129 S.Ct. at 701 (quoting
8 Pennsylvania Bd. of Probation and Parole v. Scott, 524 U.S. 357,
364-65 (1998)).
The "major thrust" of the rule is "a deterrent one," Terry, 392
U.S. at 12 (citing Linkletter v. Walker, 381 U.S. 618, 629-35
(1965)), targeting "police conduct which is overbearing or
harassing, or which trenches upon personal security without the
objective evidentiary justification which the Constitution
requires," id. at 15. In contrast, the rule is abused where it is
"invoked to exclude the products of legitimate police investigative
techniques." Id. at 13. When applied to evidence recovered pursuant to an investigatory
stop, the exclusionary rule is best equipped to deter stops made not
because of legitimate suspicion, but because the stop was motivated
by some pernicious reason (such as racial profiling, personal
animus, or the like), or by arbitrariness evidencing a genuine abuse
of police power. Such a wrongful basis for the stop warrants the
application of the exclusionary rule’s severe penalty.
But not all investigatory stops arise from such base
motivations. Indeed, the Supreme Court has explicitly recognized
that conduct observed by police may be "ambiguous and susceptible of
an innocent explanation" and yet still justify an investigatory
stop, allowing the officers to "detain the individuals to resolve
the ambiguity." Illinois v. Wardlow, 528 U.S. 119, 125 (2000). The
Court in Wardlow continued:
In allowing such detentions, Terry accepts the risk that officers may stop innocent people. Indeed, the Fourth Amendment accepts that risk in connection with more drastic police action; persons arrested and 9 detained on probable cause to believe they have committed a crime may turn out to be innocent. The Terry stop is a far more minimal intrusion, simply allowing the officer to briefly investigate further. If the officer does not learn facts rising to the level of probable cause, the individual must be allowed to go on his way.
Id. at 126. Applied injudiciously, the exclusionary rule improperly
deters this kind of legitimate police conduct, conduct that strikes
the appropriate balance between respecting the privacy citizens
enjoy under our Constitution, and preserving the state’s interest in
preventing crime.
II. Error in Application of Law to Facts
The majority today holds that the circumstances here were
insufficient to provide a reasonable suspicion for the stop that led
to Rudolph’s arrest. In my view, the majority has reached the
incorrect conclusion given the facts of this case, in part because
it ignores repeated admonishments from the United States Supreme
Court and our prior cases that the constitutionality of such stops
must be evaluated by examining the collective weight of the totality
of the circumstances.
Here, at least four circumstances could have reasonably lent
support to Officer Latchman’s conclusion that criminal activity may
have been afoot. First, the encounter at issue here occurred in the
parking lot of a shopping center that had recently experienced a
significant rise in criminal activity. As the Supreme Court has
held, "officers are not required to ignore the relevant
characteristics of a location in determining whether the
circumstances are sufficiently suspicious to warrant further
10 investigation. . . . [T]he fact that the stop occurred in a 'high
crime area' [is] among the relevant contextual considerations in a
Terry analysis." Wardlow, 528 U.S. at 124 (citing Adams v.
Williams, 407 U.S. 143, 144, 147-48 (1972)). And indeed, the
majority here concedes that "[t]he fact that the stop occurred in a
'high crime area' is a relevant factor" in the reasonable suspicion
analysis. In the period leading up to this encounter, police "had
beefed up a lot of extra patrol and a lot of overtime due to the
fact that there w[ere] a lot of break-ins and robberies in that
specific shopping center."
Second, the location of the car was unusual, and inconsistent
with where and how a typical patron of the service station would be
parked. The car was located on the side of the building opposite
the gas pumps and main entrance to the station. Furthermore, the
car was "parked parallel," not in any of the marked spaces nearby.
This location was particularly odd because of the time of day;
although there was a door to the station on that side of the
building, in the officer’s experience (unquestionably a permissible
consideration in evaluating reasonable suspicion), such back doors
were rarely if ever used by customers, especially at night.
Finally, although it was after dark, the car’s lights were off.
Third, the "furtive gestures" of the car’s occupants could
reasonably have raised questions about their activities and intent.
We have previously recognized that furtive gestures are relevant in
determining whether probable cause exists for an arrest, see, e.g., 11 Hollis v. Commonwealth, 216 Va. 874, 877, 223 S.E.2d 887, 889
(1976), and therefore they are unquestionably relevant when
evaluating the lesser standard of reasonable suspicion. Here, when
the officer pulled his vehicle within approximately one and a half
car lengths behind the parked car, he observed two individuals
within. The driver, who later turned out to be Rudolph, was
"moving around in the vehicle" in a way that suggested to the
officer that he might be "looking around for something." The other
occupant was also "moving around in the vehicle;" the officer
described the occupants’ actions as "furtive movements," "reaching
for stuff," and "ben[ding] down a couple of times."
Finally, the occupants’ decision to depart the parking lot
after encountering the officer could have been reasonably
interpreted as evasion, or at least raised the possibility that was
their motive. "[N]ervous, evasive behavior is a pertinent factor
in determining reasonable suspicion." Wardlow, 528 U.S. at 124
(citing United States v. Brignoni-Ponce, 422 U.S. 873, 885 (1975);
Florida v. Rodriguez, 469 U.S. 1, 6 (1984) (per curiam); Sokolow,
490 U.S. at 8-9). This is especially true when coupled with other
factors. See, e.g., United States v. Briggman, 931 F.2d 705, 709
(11th Cir. 1991) (defendant was parked in lot adjacent to closed
businesses and attempted to evade police); Losee v. Dearinger, 911
F.2d 48, 49-50 (8th Cir. 1990) (defendants were parked illegally
12 behind closed business in high-crime area, and attempted to evade
police). Here, after observing the car from close distance, the
officer decided to "go around the vehicle" and around the gas
station building to "make sure everything was fine." As he rounded
the building on the opposite side from where Rudolph was parked,
the officer immediately saw the parked car starting to drive away.
It is of course true that each of these circumstances might be
wholly innocent. Indeed, when viewed in isolation from one another, it is doubtful that any of them could provide police with a
reasonable suspicion that criminal activity may be afoot. However,
engaging in such an exercise, as the majority implicitly does,
ignores the correct application of a totality-of-circumstances test.
As the Supreme Court has made clear,
Terry, however, precludes this sort of divide-and- conquer analysis. The officer in Terry observed the petitioner and his companions repeatedly walk back and forth, look into a store window, and confer with one another. Although each of the series of acts was "perhaps innocent in itself," we held that, taken together, they "warranted further investigation." 392 U.S. at 22. See also Sokolow[, 409 U.S.] at 9 (holding that factors which by themselves were "quite consistent with innocent travel" collectively amounted to reasonable suspicion).
Arvizu, 534 U.S. at 274-75. The point, again, is that when viewed
together, circumstances – even if wholly innocent – may be
suspicious enough to warrant a reasonable officer in conducting a
Terry stop in order to "resolve the ambiguity." Our cases are in
perfect accord on this point. See, e.g., Moore v. Commonwealth, 276
Va. 747, 757, 668 S.E.2d 150, 156 (2008); Harris v. Commonwealth,
13 276 Va. 689, 695-98, 668 S.E.2d 141, 145-47 (2008); Buhrman v.
Commonwealth, 275 Va. 501, 505, 659 S.E.2d 325, 327 (2008); Bass v.
Commonwealth, 259 Va. 470, 475, 525 S.E.2d 921, 924 (2000). Viewed
together, the circumstances here could reasonably be considered
suspicious.
In a remarkably similar case, United States v. Dawdy, 46 F.3d
1427 (8th Cir. 1995), the Court of Appeals for the Eighth Circuit
considered a Terry stop based on an officer’s observation of a
vehicle parked, late at night, behind a closed pharmacy at which
there had been prior reported false burglary alarms. 46 F.3d at
1428. The car’s lights were off but it was occupied, and when the
officer entered the parking lot to investigate, the driver of the
car started the vehicle and began to drive toward the exit of the
lot, at which point officers stopped the car to investigate. Id. at 1428-29. The Eight Circuit held that the stop was valid,
emphasizing "not merely the presence of two men sitting in a parked
automobile at night," but also the prior suspicious activity in the
area, the occupants’ apparent lack of a legitimate business purpose,
and the occupants’ potentially evasive behavior. Id. at 1430. The similar circumstances here suggest the same result. Like
the occupants in Dawdy, Rudolph and his companion were parked, late
at night and with the lights off, behind a business. In Dawdy,
there had merely been prior false burglary alarms, which could be
seen as less suspicious than the confirmed robberies and break-ins
here. In both cases, the likelihood of a legitimate business
purpose was slight: in Dawdy, the officer reasonably believed the
14 pharmacy was closed, while here Officer Latchman knew from
experience that gas station customers seldom used back entrances,
especially at night. When they encountered law enforcement
officers, both sets of occupants attempted to make a quick exit.
And the furtive gestures of Rudolph here – a factor not present in
Dawdy, in which the stop was deemed valid – lends further support to
the reasonableness of the stop here.
III. Error in Legal Standard Applied
In this case, the majority’s error may reach deeper than merely
misunderstanding the way the circumstances here work together to
provide a reasonable suspicion. In reaching its conclusion, the
majority appears to have applied a more exacting legal standard than
the Fourth Amendment permits, declaring legitimate police activity
unconstitutional and upsetting the delicate balance between
individual privacy and community safety.
It is possible that this divergent standard has its genesis in
a slight discrepancy in the language used by the United States
Supreme Court, and subsequently in our cases, in describing the
reasonable suspicion standard under the Fourth Amendment. In Terry, the Supreme Court explicitly stated its holding, including the
following language: "We merely hold today that where a police
officer observes unusual conduct which leads him reasonably to
conclude in light of his experience that criminal activity may be
afoot," an investigatory stop is warranted. Terry, 392 U.S. at 30
(emphasis added). Some later cases utilize the same conditional
language. See, e.g., Sokolow, 490 U.S. at 7 ("may be afoot");
15 Arvizu, 534 U.S. at 273 ("may be afoot").
However, other reasonable suspicion cases have included more
definitive language, suggesting that circumstances must indicate
that criminal activity is afoot, or that a suspect is involved in
criminal activity. These cases include Brown v. Texas, 443 U.S. 47,
51 (1979) ("is involved in criminal activity") and Wardlow, 528 U.S.
at 123 ("criminal activity is afoot").
This disparity is reflected in our cases. Compare, e.g.,
Moore, 276 Va. at 757, 668 S.E.2d at 155 ("may be afoot"); McCain v. Commonwealth, 275 Va. 546, 552, 659 S.E.2d 512, 516 (2008) ("may be
afoot") with Harris, 276 Va. at 697, 668 S.E.2d at 147 ("is involved
in criminal activity"); Bass, 259 Va. at 475, 525 S.E.2d at 923 ("is
afoot"). In at least one case, both kinds of language are used in
subsequent sentences. See Ewell, 254 Va. at 217, 491 S.E.2d at 722-
23 ("In order to justify the brief seizure of a person by an
investigatory stop, a police officer . . . must have a reasonable
suspicion, based on objective facts, that the [person] is involved
in criminal activity. In determining whether a police officer had a
particularized and objective basis for suspecting that the person
stopped may be involved in criminal activity, a court must consider . . . ." (emphases added) (citations and quotation marks omitted)).
These examples suggest that there may be little theoretical
difference between the two constructions. However, semantic
differences can come to acquire great practical importance over
time. The more definite language of the latter line of cases could
be easily misconstrued as a requirement that police officers have
16 some certainty that criminal activity in fact is about to commence,
is already underway, or has recently concluded. Terry and its
progeny do not go so far, but the conclusion reached by the majority
here suggests that it has.
If so, this heightened requirement forecloses a vast range of
legitimate investigatory practices, authorized by Terry, that result
in only "minimal intrusion." Far from allowing officers the limited
ability to request clarification when confronted with ambiguous
circumstances, it places a weighty and unwarranted burden of proof
on police to postpone any encounter until criminal culpability, or
at the very least probable cause to suspect a crime is underway, can
be conclusively established. This is not the holding of Terry or the cases that have followed it, and the majority’s implementation
of this foreign requirement, which is implicit in its resolution of
this case, is error.
In this case, the majority does not properly apply the
principles articulated by the United States Supreme Court in
evaluating Terry stops. The United States Supreme Court has long
made clear that states are permitted to provide greater protections
to their citizens than the minimal levels guaranteed by the federal
Constitution; however, they must do so by means of state law,
whether embodied in state statute or state constitution. Danforth v. Minnesota, 552 U.S. ___, ___, 128 S.Ct. 1029, 1046 (2008) (citing
Oregon v. Hass, 420 U.S. 714 (1975); Tarble’s Case, 80 U.S. 397
(1872); Ableman v. Booth, 62 U.S. 506 (1859)). States are free to
"impose higher standards on searches and seizures than required by
17 the Federal Constitution," but this must be accomplished by state
law. Virginia v. Moore, 553 U.S. ___, ___, 128 S.Ct. 1598, 1604
(2008) (quoting Cooper v. California, 386 U.S. 58, 62 (1967)).
IV. Conclusion
For all the forgoing reasons, I believe the Court of Appeals
was correct in affirming the trial court’s denial of Rudolph’s
motion to suppress and in affirming his conviction. Accordingly, I
would affirm the judgment of the Court of Appeals.
This order shall be published in the Virginia Reports and
shall be certified to the Court of Appeals and the said circuit
court.
A Copy,
Teste:
Patricia L. Harrington, Clerk